Clark County mulls high-court review of stormwater

Court of Appeals had ruled plan inadequate to protect local waterways

By Stephanie Rice, Columbian Vancouver city government reporter

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County commissioners on Wednesday instructed their attorney to draft a petition to the Washington Supreme Court, a strong indication commissioners will ask the state's highest court to weigh in on the county's preferred method of managing polluted runoff.

Last month, the county was dealt a blow by the state Court of Appeals, which issued a ruling Sept. 25 that said the stormwater plan doesn't adequately protect waterways.

The three-judge panel upheld a ruling by the state Pollution Control Hearings Board, which said a compromise between the county and the state Department of Ecology was insufficient under federal and state clean water laws.

Kevin Gray, the director of the Department of Environmental Services, was among those who met with commissioners Wednesday in executive session to discuss the litigation. Gray said commissioners Steve Stuart and Marc Boldt — Tom Mielke was absent — said they wanted county attorneys to draft a petition for review.

Bronson Potter, the county's chief civil deputy prosecutor, said he was instructed by commissioners not to discuss the case with The Columbian. He did say commissioners want to review the petition before it's filed.

The deadline to file the appeal is Oct. 25.

An appeal would come as no surprise, as Boldt and Mielke are up for re-election in November and have campaigned about the need for the state to allow more flexibility in how goals are met. Their challengers, David Madore and Joe Tanner, have echoed the commissioners' concerns that current runoff regulations are too costly and will be a turnoff to developers.

The controversy centers on a 2007 Department of Ecology requirement that newly developed land drain as slowly as it did prior to Euro-American settlement.

Computer models are used in determining how slowly land should drain.

Under the Clean Water Act, governments that operate a separate storm sewer system must have a National Pollutant Discharge Elimination System permit.

Commissioners dismissed the requirement as too costly and stringent and adopted a different ordinance. They were put on notice by the state that they were in violation of their NPDES permit. Commissioners compromised and adopted a new plan that said the developer can't make runoff any worse and the county will make up the difference by making off-site watershed improvements at public expense.

The compromise with the Department of Ecology was challenged to the state Pollution Control Hearings Board by the Rosemere Neighborhood Association, Columbia Riverkeeper and Northwest Environmental Defense Center.

The state Pollution Control Hearings Board ruled that the county's plan to mitigate problems by making improvements at another location was not based on science, a conclusion shared by the Court of Appeals.

Clark County's the only jurisdiction in Western Washington to appeal the pre Euro-American standard.

Dvija Bertish of the Rosemere Neighborhood Association, an environmental group, said Wednesday he's not surprised the county, which was joined in the legal fight by the Building Industry Association of Clark County, is considering an appeal.

"We are confident that we will continue to succeed in enforcing stormwater management requirements that are essential for reducing water pollution," Bertish said in a written statement.

If the county does end up victorious, it will have to figure out how to pay for the stormwater program, which will run out of money if the pace of development picks up.


Stephanie Rice: 360-759-4508 or stephanie.rice@columbian.com.